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Wednesday, August 2, 2017

Ex-UK dental leader's lawsuit alleges that he lost his job because he criticized Gov. Bevin's proposal for changes in Medicaid

This story has been updated.

A Kentucky oral-health leader has filed a federal whistleblower lawsuit against University of Kentucky officials and an unnamed state official, alleging that he lost his post-retirement job in UK's College of Dentistry because he criticized Republican Gov. Matt Bevin's proposal for changes in the Medicaid program.

Raynor Mullins

M. Raynor Mullins sued Mark Birdwhistell, the UK HealthCare vice president who helped Bevin's staff draft the proposed changes; dental-school Dean Stephanos Kyrkanides; and "John Doe," identified in the suit only as "a member of the staff of Gov. Matt Bevin or a member of Gov. Bevin's administration."

In June 2016, Bevin asked federal officials for a waiver to help him reduce Medicaid costs, a request that is still pending. One proposal would remove dental and vision benefits for all people covered by the 2014 expansion of Medicaid eligibility by then-Gov. Steve Beshear, a Democrat.

The suit says that a few days later, Kyrkanides told Mullins that he needed to stay "off radio" in regard to the waiver, and "communicated that this direction came from 'up top'." It says that Mullins presumed that to mean no radio or television interviews, and that he told Kyrkanides, “I have not received any requests from the media, but I do have serious concerns about the proposed waiver,” and said he would submit comments during the comment period required by federal law.

The next month, Mullins was among five Kentucky oral-health leaders who said in a formal comment on the waiver request that said the cost explanation for reducing dental and vision benefits was "fuzzy," and based on "flawed cost assumptions." They argued that removing the benefits would cost the state more than it would save, because poor oral health increases "major cost drivers such as diabetes and cardiovascular disease," as well as obesity, and would increase wasteful use of emergency rooms. Beshear posted the comments on his "Save Kentucky Healthcare" website.

Mullins' lawsuit says he was the primary drafter of the statement, which said it "in no way represented the official positions of the University of Kentucky or any of its academic units." Joining him were Jeff Ebersole, a UK professor of oral health science and director of the oral-health research center; Jim Cecil, a former state dental director and Medicaid dental director; Robert Henry of the Department for Veterans Affairs hospitals in Lexington; and David Nash, former dean of the dental school.

Mark Birdwhistell talked Medicaid as Gov. Matt Bevin listened.

The lawsuit says that Bevin, Birdwhistell "and/or officials in the Bevin administration" called Kyrkanides while he was on vacation in Greece and "communicated their displeasure" with the statement and pressured the dean to "retaliate" against Mullins. It later says that the dean told other dental-school leaders that the call had come from "the governor's office," that he had to "figure out how to get rid of Raynor Mullins," that he told one of them Mullins "has to go," that one of the leaders told Mullins and another faculty member about his conversation with the dean, and that the dean ultimately told Mullins "that these threats flowed from the governor's office" and "We all work for the governor."

The suit says that the dean asked other dental-school leaders and faculty how to terminate Mullins' appointment as a post-retirement emeritus faculty member, a non-tenured post he had held since 2006; that he then told Mullins that due to his comments, "the UK College of Dentistry had been threatened, and Dr. Mullins needed to go 'off the radar' and keep a low profile;" and that "Kyrkanides also reported that Defendant Birdwhistell had intervened to 'protect the college'."

Mullins alleges that Kyrkanides was trying to discourage him from exercising his free-speech rights on matters of public concern, at the direction of Birdwhistell, who was acting at the behest of Bevin or his agents. On Oct. 6, he and the other four oral-health leaders sent federal officials comments critical of the waiver proposal, which "further infuriated Gov. Bevin and other administration officials," the suit alleges.

It goes on to say that Kyrkanides "notified Dr. Mullins’ colleagues that they could no longer work with Dr. Mullins on new grant-funded projects, in retaliation against Dr. Mullins," and told them to stop speaking to him "in an effort to ostracize and retaliate against Dr. Mullins for exercise of his First Amendment rights."

Mullins filed a complaint with UK's Office of Institutional Equity and Equal Opportunity, which "failed to conduct a complete investigation" and never told him of the outcome, the lawsuit says. It also says Kyrkanides told faculty leaders and staff in the Department of Oral Health Science to not process a 2017-18 faculty reappointment form for Mullins, copying the investigative office on the email but not Mullins, who was told Jan. 17 that he wouldn't be reappointed, contrary to his stated desires.

The lawsuit says the letter "inaccurately stated that the UK College of Dentistry was not aware of any effort by Dr. Mullins to secure grants or other external funding regarding his position, and inaccurately stated that the current budget climate made it impossible to support Dr. Mullins’ position from other funding streams. These stated bases for terminating Dr. Mullins were a pretext for the real reason for his employment termination – retaliation against Dr. Mullins for exercise of his First Amendment rights."

The lawsuit says the defendants conspired to violate Mullins's civil rights and seeks unspecified compensatory and punitive damages. Claims made in the filing of a lawsuit give only one side of a case. UK spokeswoman Kristi Lopez said the university had just received the suit and had no comment "at this time."

On Friday, Aug. 4, UK President Eli Capilouto, a dentist by trade, sent a message to the university community, reading in part: "I will not comment on the specifics because we are now in litigation. A court of law will determine the facts and we will respond accordingly. But I want to be very clear: the University of Kentucky has a deep and enduring commitment to academic freedom. Our regulations protect it; and our values hold it sacred. No member of our community will be punished for expressing their views on matters of public concern."

Bevin spokeswoman Amanda Stamper told the Lexington Herald-Leader, “Neither Governor Bevin, nor anybody else in the governor’s office, knows the plaintiff or has any knowledge about the allegations detailed in the media’s coverage of this case,” Stamper said. “We doubt it’s a coincidence that both the plaintiff and his lawyer are political donors and supporters of Steve and Andy Beshear,” the Democratic attorney general with whom Bevin is feuding.

Mullins said at a press conference, “What I experienced has no place in our state or in our land-grant university. I have great affection for the University of Kentucky and our state. Colleagues and friends who know me well will comprehend how difficult the decision was to file this lawsuit. The need now is to inject transparency in the rays of bright sunlight on what has occurred.”

The suit says Mullins headed UK's Department of Community Dentistry from 1974 to 1988, head of the college's education program in 1988-94, chief of the Division of Dental Public Health from 1994 to 2004, and then "with the UK Center for Oral Health Research, its community partners, and other UK colleges, to develop education, service, and research partnerships aimed at improving oral health literacy, dental public health programs, and reducing oral health disparities in counties across Kentucky," attracting several grants. It said his honors include the presidency of the American Association of Public Health Dentistry (1981-82); the Kentucky Public Health Hall of Fame (2006); the Presidential Citation Award for Outstanding Contribution to Health of Kentuckians from the Kentucky Dental Association (2008); the Kentucky Primary Care Association's Lois Baker Exemplary Service Award (2015); the dental school's Distinguished Alumnus of the Year Award (2015); and the University of Pikeville’s Distinguished Alumnus of the Year Award (2015).

UPDATE, Aug. 3: UK HealthCare's former chief financial officer sued the university, saying it fired him after he complained about his pay. Sergio Melgar "was mentioned as part of another lawsuit against UK, that of UK surgeon Paul Kearney, who lost clinical privileges after a UK panel ruled that he was rude and unprofessional. Kearney contends that he was targeted only because he had questioned the financial dealings of UK HealthCare," the Herald-Leader reports. "In 2015, Kearney told the Herald-Leader that UK has a pattern of 'getting rid of people who speak out,' including Melgar."

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Kentucky Health News is an independent news service of the Institute for Rural Journalism and Community Issues, based in the School of Journalism and Media at the University of Kentucky, with support from the Foundation for a Healthy Kentucky.Republication of any KHN material with proper credit is hereby authorized, but if the republication is longer than a news brief we ask that it contain the first sentence of this paragraph. Thanks!